STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PASCO COUNTY, FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 92-7423RX

) TAMPA BAY REGIONAL PLANNING ) COUNCIL, )

)

Respondent. )

) BUILDERS ASSOCIATION OF )

GREATER TAMPA, )

)

Petitioner, )

)

vs. ) CASE NO. 92-7424RX

) TAMPA BAY REGIONAL PLANNING ) COUNCIL, )

)

Respondent. )

) CITY OF TAMPA, )

)

Petitioner, )

)

vs. ) CASE NO. 92-7452RX

) TAMPA BAY REGIONAL PLANNING ) COUNCIL, )

)

Respondent. )

)

FINAL ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on February 10 and 11, 1993, in Tallahassee, Florida.

APPEARANCES

For Petitioner, Pasco County, Florida: Karla A. Stetter

Chief Assistant County Attorney Pasco County Government Center 7530 Little Road

New Port Richey, Florida 34654

For Petitioner, Builders Association of Greater Tampa:

Thomas G. Pelham, Esquire Lynda L. Goodgame, Esquire Holland & Knight

600 Barnett Bank Building Tallahassee, Florida 32301

For Petitioner, City of Tampa:

Charlene V. Edwards Assistant City Attorney Sixth Floor, City Hall

315 East Kennedy Boulevard Tampa, Florida 33602

For Respondent, Tampa Bay Regional Planning Council: Linda M. Hallas, Esquire

Tucker & Halles, P.A.

9455 Koger Boulevard, Suite 209 St. Petersburg, Florida 33702

For Intervenor, Southwest Florida Regional Planning Council: David Emerson Bruner, Esquire

950 North Collier Boulevard, Suite 207 Marco Island, Florida 33937

STATEMENT OF THE ISSUE

Whether Policy 20.11.1 of Goal 20: Transportation, of Rule 29H-9.002, Florida Administrative Code, (hereinafter referred to as the "Challenged Rule"), constitutes an invalid exercise of delegated legislative authority?

PRELIMINARY STATEMENT

On December 12, 1992, Pasco County (hereinafter referred to as "Pasco"), and the Builders Association of Greater Tampa (hereinafter referred to as "BAGT"), each filed a Petition for Administrative Determination of Invalidity of Adopted Rule with the Division of Administrative Hearings. Pasco filed an Amended Petition for Administrative Determination of Invalidity of Adopted Rule on December 14, 1992.

By Order of Assignment entered December 17, 1992, the Pasco petition was designated case number 92-7423RX and was assigned to the undersigned. The BAGT petition was designated case number 92-7424RX and was also assigned to the undersigned by an Order of Assignment entered December 17, 1992. Both cases were set for final hearing on January 12, 1993, by a Notice of Hearing entered December 18, 1992.

On December 18, 1992, the City of Tampa (hereinafter referred to as the "City"), filed a Petition for Administrative Determination of Invalidity of Adopted Rule. By Order of Assignment entered December 24, 1992, the City's petition was designated case number 92-7452RX and was assigned to the undersigned.

All three petitions challenged the validity of Policy 20.11.1 of Goal 20: Transportation, of Rule 29H-9.002, Florida Administrative Code, the Future of the Region A Comprehensive Regional Policy Plan for the Tampa Bay Region, a rule of the Tampa Bay Regional Planning Council (hereinafter referred to as the "TBRPC").

On January 4, 1993, after hearing argument of the parties, an Order Granting Motion for Continuance and Rescheduling Final Hearing was entered. The final hearing for all three cases, upon agreement of all parties, was scheduled for February 10, 1993.

An Order Granting Joint Motion for Consolidation was entered on January 4, 1993.

At the commencement of the final hearing of these cases, a Motion to Intervene by SWFPC, filed on behalf of the Southwest Florida Regional Planning Council (hereinafter referred to as the "SWFRPC"), was considered. A ruling on SWFRPC's request to intervene, which was opposed by the Petitioners, was reserved until this Final Order was entered. SWFRPC was, however, allowed to participate in the final hearing to the extent of cross examining witnesses and raising objections. SWFRPC only participated in the first day of the final hearing.

After considering the motion to intervene filed by SWFRPC and the arguments contained in the proposed final orders of the parties, the motion to intervene of SWFRPC is denied.

At the final hearing Pasco presented the testimony of William Munz. Three exhibits were offered by Pasco and were accepted into evidence. The City presented the testimony of Mahdi Mansour. Four exhibits were offered by the City and were accepted into evidence. BAGT presented the testimony of Joseph A. Narkiewicz, J. Thomas Beck and L. Benjamin Starrett. BAGT offered exhibits 3-6 and 8-9. BAGT's exhibits were accepted into evidence. BAGT exhibits 4-6 and 8-

9 were accepted only to the extent that they were determined to be relevant.

The TBRPC presented the testimony of Roy E. Chapman, L. Benjamin Starrett and Suzanne Cooper. TBRPC also offered exhibits 1-6, 9-12 and 16. All of TBRPC's exhibits were accepted into evidence to the extent determined to be relevant.

Finally, two exhibits were offered and accepted as Hearing Officer exhibits.

A transcript of the final hearing was filed on March 5, 1993. Proposed final orders were, therefore, to be filed on or before March 15, 1993, and the Final Order was to be entered on or before April 5, 1993. Due to storm damage, a three day extension until March 18, 1993, to file proposed final orders was granted. The due date for the Final Order was, therefore, April 8, 1993.

On April 7, 1993, BAGT filed a Notice of Supplemental Authority. In light of the fact that the undersigned read the supplemental authority and the other parties had no opportunity to comment on it, the undersigned requested that BAGT arrange a telephone conference. The conference was held of April 13, 1993.

All of the parties, except the SWFRPC, have filed proposed final orders containing proposed findings of fact. A ruling on each proposed finding of fact

has been made either directly or indirectly in this Final Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.

FINDINGS OF FACT

1. The Petitioners.

   
   

   1. Pasco is a political subdivision of the State of Florida. Its offices are located at 705 East Live Oak, Dade City, Florida.

      
      

   2. BAGT is an association. BAGT's approximately 697 members are involved in some manner in the development or building industry in the Tampa Bay region. For the most part, BAGT's members reside and own property within the four-county jurisdiction of the TBRPC.

      
      

   3. BAGT's membership includes approximately 176 builder and developer members and 520 associate members who are subcontractors, material suppliers, financial institutions, engineering firms, architectural firms and other types of firms that provide goods and services related to the building industry.

      
      

   4. BAGT's membership includes builders who build in "development of regional impact" (hereinafter referred to as "DRI"), projects and associate members who provide construction support services to DRI projects.

      
      

   5. During an eighteen month period, over 50 percent of the building permits issued in Hillsborough County were issued to twenty-three BAGT builder- members for DRI projects. This amounts to approximately 3.3 percent of the membership of BAGT.

      
      

   6. BAGT works on behalf of its membership to promote a strong and viable building industry.

      
      

   7. BAGT has the responsibility to "work for the elimination of governmental orders improperly restricting the home building industry and to support beneficial directives." Certificate of Reincorporation and By-Laws, BAGT exhibits 5 and 6.

      
      

   8. BAGT members have to consider the levels of service for transportation of local governments and TBRPC in obtaining permits for DRI projects. If more stringent levels of service are required for a project, the development may be prolonged and be more costly to complete.

      
      

   9. The City is a political subdivision of the State of Florida. The City's offices are located at 315 East Kennedy Boulevard, Tampa, Hillsborough County, Florida.

      
      

   10. The City and Pasco are located within the jurisdiction of TBRPC.

       
       

   11. The Petitioners are all substantially affected by the Challenged Rule.

       
       

2. The Respondent.

   
   

   1. TBRPC is an agency of the State of Florida within the definition of the term "agency" contained in Section 120.52(1)(b), Florida Statutes.

   2. TBRPC was created pursuant to Section 186.504, Florida Statutes. TBRPC's offices are located at 9455 Koger Boulevard, St. Petersburg, Pinellas County, Florida.

      
      

   3. TBRPC's geographic boundaries, which generally include the four- county, Tampa Bay region, include the geographic areas within Department of Transportation Districts one and seven.

      
      

   4. TBRPC does not build or maintain roads. Nor does TBRPC provide funds to those that are responsible for building or maintaining roads.

      
      

3. Comprehensive Regional Policy Plans.

   
   

   1. Pursuant to Section 186.507, Florida Statutes, all regional planning councils, including the TBRPC, are required to adopt a "comprehensive regional policy plan". Among other things, the comprehensive regional policy plan must include the following:

      
      

      (8) Upon adoption, a comprehensive regional policy plan shall provide, in addition to other criteria established by law, the basis

      for regional review of developments of regional impact, regional review of federally assisted projects, and other regional overview and comment functions.

      
      

   2. As required by Section 186.507(1), TBRPC has adopted a comprehensive regional policy plan, Rule 29H-9.002, Florida Administrative Code, Future Of The Region, A Comprehensive Regional Policy Plan for the Tampa Bay Region. The comprehensive regional policy plan was adopted in 1987, and has been amended in 1988, 1990 and 1991.

      
      

   3. Although in adopting a comprehensive regional policy plan a regional planning council is required to consider state and local plans and local governments are given an opportunity to comment, the regional planning council is not bound by those plans or comments. Section 186.507(4)-(6), Florida Statutes. TBRPC's comprehensive regional policy plan was adopted before some of the local government comprehensive plans in its region were promulgated.

      
      

   4. TBRPC interprets Sections 186.507(1) and (8), Florida Statutes, to require that it include the criteria it intends to use in its review of a DRI.

      
      

   5. The Department of Community Affairs has been designated by the Executive Office of the Governor to review comprehensive regional policy plans and amendments. See Section 186.507(2), Florida Statutes. The Department of Community Affairs reviewed TBRPC's comprehensive regional policy plan.

      
      

4. Developments of Regional Impact.

   
   

   1. Part of the responsibility assigned to regional planning councils, including TBRPC, is the responsibility to review DRIs. Section 380.06, Florida Statutes.

      
      

   2. DRIs are created and regulated in the Florida Environmental Land and Water Management Act, Sections 380.012-380.10, Florida Statutes. DRI is defined in Section 380.06(1), Florida Statutes.

   3. The procedure for reviewing DRI applications is set out in Section 380.06, Florida Statutes. Several government agencies are involved in the review process, including TBRPC.

      
      

   4. The Department of Community Affairs is required to, among other things, adopt rules governing the review of DRI applications. Section 380.06(23)(a), Florida Statutes. Pursuant to this authority, the Department of Community Affairs has adopted Chapter 9J-2, Florida Administrative Code. These Rules wee promulgated to "ensure uniform procedural review of developments of regional impact by [the Department of Community Affairs] and regional planning agencies under this section." Section 380.06(23)(a), Florida Statutes.

      
      

   5. The Bureau of State Planning is the bureau of the Department of Community Affairs with primary responsibility for administering Chapter 380, Florida Statutes, to the extent of the Department of Community Affairs' involvement.

      
      

   6. Regional planning councils, including the TBRPC, are required to review all DRI applications involving developments in their regions. Section 380.06(12), Florida Statutes, requires that regional planning councils issue a report and make recommendations concerning the impact of proposed DRIs.

      
      

   7. Regional planning councils, while subject to any rules governing DRI review adopted by the Department of Community Affairs, are authorized to adopt additional rules concerning their review of DRI applications. Section 380.06(23)(c), Florida Administrative Code. Those rules, however, must not be "inconsistent" with the rules governing DRI review adopted by the Department of Community Affairs.

      
      

   8. TBRPC interprets Section 380.06(23)(c), Florida Statutes, as authorizing the Challenged Rule.

      
      

   9. What is "inconsistent" for purposes of Section 380.06(23)(c), Florida Statutes, is not specifically defined.

      
      

   10. Ultimately, the decision on a DRI application is made by the local government in which the DRI is located. Section 380.06(15), Florida Statutes. In making that decision the local government is required to consider the local government's comprehensive plan and land development regulations, the State Comprehensive Plan and the report and recommendations of the regional planning council. Section 380.06(14), Florida Statutes.

       
       

   11. Local governments are governed by the provisions of Section 380.06(15), Florida Statutes, in determining whether to issue a DRI.

       
       

   12. A local government's decision on a DRI application may be appealed to the Florida Land and Water Adjudicatory Commission (hereinafter referred to as "FLWAC"). Section 380.07, Florida Statutes. The final decision on the DRI application, if an appeal is taken, is made by FLWAC after a formal administrative hearing is conducted pursuant to Chapter 120, Florida Statutes. Regional planning councils have the right to appeal a local government's decision.

       
       

   13. In determining whether a DRI should be granted, local governments are not bound by any of the comments made by the regional planning council that reviewed the DRI application. They are only required to consider the comments of the regional planning council made pursuant to Section 380.06(12), Florida

       Statutes. Should the local government fail to adequately take into account the comments of the regional planning council, however, it faces the possibility that the regional planning council will appeal the local government's decision on a DRI application to FLWAC.

       
       

5. The Role of Comprehensive Plans in DRI Reviews; Establishing Levels of Service.

   
   

   1. The local government comprehensive plan and the land development regulations which a local government is required to consider when reviewing a DRI application are required by Part II of Chapter 163, Florida Statutes. Every local government in Florida is required by Section 163.3167, Florida Statutes, to adopt a comprehensive plan. Land development regulations governing the issuance of development orders are required by Section 163.3202, Florida Statutes.

      
      

   2. In the TBRPC region the comprehensive plans of all local governments, except St. Petersburg Beach and Port Richey, have been found by the Department of Community Affairs to be in compliance with Chapter 163, Florida Statutes.

      
      

   3. Among other things, each comprehensive plan must provide for transportation facilities within the local government's geographic area. Section 163.3177, Florida Statutes.

      
      

   4. The Legislature has required that local governments specifically establish levels of service for public facilities in their comprehensive plans. Section 163.3177(10)(f), Florida Statutes. See also Rule 9J-5.005(3), Florida Administrative Code.

      
      

   5. A "level of service" for a road is the quantification of the quality of travel on the road expressed by letter grades rating from an optimal operating condition of "A" to a rating of unstable operational conditions of "F".

      
      

   6. Local governments are required by Section 380.06(14), Florida Statutes, to insure that a development is consistent with its comprehensive plan. Therefore, it must insure that a DRI is consistent with the levels of service contained therein. See also Section 163.3194, Florida Statutes.

      
      

   7. The Florida Department of Transportation has also been specifically authorized to establish levels of service for state roads. Sections 334.044(10) and 336.45, Florida Statutes. The Department of Transportation has adopted Chapter 14-94, Florida Administrative Code, establishing levels of service for its use. The Department of Community Affairs has required that levels of service contained in local comprehensive plans be compatible with Department of Transportation levels of service "to the maximum extent feasible". Rule 9J- 5.0055(1)(d), Florida Administrative Code.

      
      

   8. The Legislature has not specifically required or authorized regional planning councils to adopt levels of service. Nor has the Legislature specifically prohibited regional planning councils from adopting levels of service.

      
      

6. The City's and Pasco's Comprehensive Plans.

   
   

   1. Pasco's comprehensive plan has been adopted and in compliance since June, 1989. In its comprehensive plan, Pasco has included levels of service for

      State roads which are compatible with those established by the Department of Transportation.

      
      

   2. Pasco uses the levels of service contained in its comprehensive plan to review DRI applications.

      
      

   3. The City adopted its comprehensive plan by Ordinance No. 89-167, in July, 1989. The City's comprehensive plan has been found to be in compliance with Chapter 163, Florida Statutes. The City's comprehensive plan contains transportation levels of service in its Traffic Circulation Element.

      
      

   4. The City uses the levels of service contained in its comprehensive plan to review DRI applications.

      
      

7. The Challenged Rule.

   
   

   1. Pursuant to Section 186.507(1), Florida Statutes, TBRPC is required to include in its comprehensive regional policy plan regional issues that may be used in its review of DRI applications and the criteria TBRPC intends to rely on in its review.

      
      

   2. As part of its comprehensive regional policy plan, TBRPC has enacted Policy 20.11.1 of Goal 20 of the Future Of The Region, A Comprehensive Regional Policy Plan for the Tampa Bay Region, as Rule 29H-9.002, Florida Administrative Code. Notice of the Challenged Rule was published in the Florida Administrative Weekly on July 24, 1992. The Challenged Rule was approved by TBRPC on September 14, 1992, and it was filed for adoption on October 12, 1992.

      
      

   3. The Challenged Rule provides:

      
      

      Development of Regional Impact (DRIs) shall be required to analyze project impacts and mitigate to an appropriate peak hour, peak season operating Level of Service (LOS) on regional roads. The level of service standards for DRI's within the Tampa Bay regional shall be:

      
      

      Rural Roads (those not included - C in an urbanized or urbanizing

      area or a TCMA

      
      

      Within designated CBDs - E

      
      

      Within designated Regional - E Activity Centers

      
      

      Within Transportation Concurrency - as Management Areas (TCMA) established

      pursuant to Sec. 9J-5.0057

      
      

      Constrained or Backlogged - maintain Facilities existing V/C

      (Volume to Capacity) All other regional roadways - D

      If the affected local government(s) has more stringent standards, those standards will apply.

   4. TBRPC adopted the Challenged Rule to fulfill its responsibility to include the criteria for transportation impacts to be used in its DRI review in its comprehensive regional policy plan.

      
      

   5. TBRPC has been using levels of service for review of transportation impacts of DRIs since 1975.

      
      

   6. There are levels of service contained in the comprehensive plans of the City and Pasco which are different than some of the levels of service contained in the Challenged Rule. The Challenged Rule provides that the levels of service contained therein are to be used by TBRPC in its review of DRI applications except to the extent that a level of service contained in the local government's comprehensive plan may be more stringent. To the extent that a level of service in the Challenged Rule is more stringent, however, TBRPC intends to recommend to the local government the use of its more stringent level of service. Ultimately, if the local government decides to use a less stringent level of service contained in its comprehensive plan and its decision is appealed, FLWAC will be required to exercise its authority to determine which level of service is consistent with Florida law.

      
      

   7. The Challenged Rule does not require that local governments accept the levels of service created therein. The Challenged Rule establishes the levels of service that the TBRPC will use in its review and comment on DRI applications.

      
      

   8. The Challenged Rule also puts developers on notice of the levels of service that TBRPC will base its review of DRI applications on.

      
      

   9. While a local government must consider the comments of TBRPC, the Challenged Rule does nothing to change the fact that it is up to the local government, after consideration of its comprehensive plan, the State comprehensive plan and the comments of the TBRPC to make the ultimate decision as to whether a DRI application is consistent with State law.

      
      

   10. Local governments are not required to accept the levels of service contained in the Challenged Rule. Nor is TBRPC, in fulfilling its responsibility to review DRI applications, required by law to only apply levels of service established by local governments in their comprehensive plan.

       
       

   11. If a local government decides to apply a more strict level of service contained in the Challenged Rule as a result of a comment from TBRPC or as a result of an appeal to FLWAC, the costs associated with the DRI to the local government, including Pasco and the City, could be increased in order to achieve and maintain the higher level of service.

       
       

8. Rule 9J-2.0255, Florida Administrative Code.

1. Pursuant to the authority of Section 380.06(23)(a), Florida Statutes, the Department of Community Affairs adopted Rule 9J-2.0255, Florida Administrative Code.

   
   

2. Rule 9J-2.0255, Florida Administrative Code, sets out the Department of Community Affairs' policy concerning its role in the review of DRI applications. Rule 9J-2.0255, Florida Administrative Code, establishes the "minimum standards by which the Department will evaluate transportation conditions in development orders for developments of regional impact "

3. As currently in effect, Rule 9J-2.0255, Florida Administrative Code, specifically provides that the Department of Community Affairs, in evaluating a DRI application, will look to the "policies of the local comprehensive plan and Chapter

   
   

   80 . . ." if a local comprehensive plan is in effect and to the "transportation conditions pursuant to 9J-5, F.A.C., and Chapter 380 . . . " if no local comprehensive plan is in effect.

   
   

4. Rule 9J-2.0255, Florida Administrative Code, is limited to Department of Community Affairs' evaluations of DRI applications. The Rule does not specify that regional planning councils must utilize the Rule or local government comprehensive plans in their review of DRI applications.

   
   

5. The fact that Rule 9J-2.0255, Florida Administrative Code, provides that, after a local comprehensive plan has been adopted and found to be in compliance, the levels of service contained therein will be used by the Department of Community Affairs for its purposes does not cause levels of service established by TBRPC for its purposes to be inconsistent with Rule 9J- 2.0255, Florida Administrative Code.

   
   

6. The standards established in Rule 9J-2.0255, Florida Administrative Code, are only designated as "minimum" standards. Nothing in the Challenged Rule requires the use of any standard less that those "minimum" standards even for purposes of TBRPC's review of DRI applications. The Challenged Rule even specifically provides that, to the extent that a level of service contained in a local government's comprehensive plan is more stringent than that contained in the Challenged Rule, that level of service will be applied by TBRPC.

   
   

7. When originally adopted in January, 1987, Rule 9J-2.0255, Florida Administrative Code, provided specific transportation levels of service which the Department of Community Affairs intended to use until comprehensive plans containing levels of service were adopted by local governments. The Rule provided, however, that it was not intended to "limit the ability of the regional planning councils and local governments to impose more stringent mitigation measures than those delineated in this rule." Rule 9J-2.0255(8), Florida Administrative Code. This provision is no longer effective. The original rule also did not specifically indicate that levels of service contained in local government comprehensive plans were to be used by the Department of Community Affairs as it now provides.

   
   

8. While there was testimony during the final hearing of this matter that the use of different levels of service by TBRPC and the City or Pasco will result in "inconsistent" reviews of DRI applications, there is nothing in Florida Statutes or the Department of Community Affairs' rules that requires consistency in reviews. There was also testimony that such differences will "not promote efficient DRI review." If the Legislature believes the consideration by the TBRPC and local governments of different levels of service in reaching a decision on a DRI application is "inefficient", it has not made its belief clear in Florida Statutes. If the Legislature wants all of the various agencies involved in DRI review to "not disagree" in order to have "efficient" DRI reviews, it must specifically so provide.

   
   

9. The Department of Community Affairs reviewed the Challenged Rule. During its review concern was expressed by the then Secretary of the Department of Community Affairs about the inclusion in the Challenged Rule of levels of

   service. TBRPC was urged "to adopt standards and methodologies for reviewing DRIs that are consistent with those used by the Department of Community Affairs." TBRPC was not, however, told that the use of levels of service consistent with local government comprehensive plans was required by Department of Community Affairs' rules or that the failure of TBRPC to comply with the Department's suggestion would cause the Challenged Rule to be considered inconsistent with Department of Community Affairs' rules.

   
   

10. Concern was also expressed during the review of the Challenged Rule to the Department of Community Affairs by the Department of Transportation about possible inconsistencies of the Challenged Rule's levels of service with the Department of Transportation's Rules. Concerns were also raised within the Department of Community Affairs by the Bureau of State Planning.

    
    

11. Ultimately, after considering comments from those interested in the Challenged Rule and in spite of the fact that the Department of Community Affairs would prefer that the levels of service used by the Department of Community Affairs, local governments and regional planning councils be the same, the Department of Community Affairs did not conclude that the Challenged Rule was inconsistent with Rule 9J-2.0255, Florida Administrative Code, or any other statute or rule.

    
    

    I. Section 32, CS/CS/HB 2315.

    
    

12. On April 4, 1993, Section 32, of CS/CS/HB 2315 (hereinafter referred to as "Section 32"), was enrolled. Section 32, if signed by the Governor, creates Section 186.507(14), and provides:

    
    

    (14) A regional planning council may not, in its strategic regional policy plan or by any other means, establish binding level-of- service standards for public facilities and services provided or regulated by local governments. This limitation shall not be construed to limit the authority of regional planning councils to propose objections,

    recommendations, or comments on local plans or plan amendments.

    
    

13. Section 32 has not yet become law. Additionally, it Section 32 becomes law, it will not be effective until July 1, 1993.

    
    

14. Section 32 was filed in this proceeding by BAGT on April 7, 1993, after the final hearing of these cases had closed. Section 32 was not available to the parties until immediately before it was filed by BAGT. Therefore, it could not have been raised at the time of the final hearing of these cases.

    
    

    CONCLUSIONS OF LAW

    
    

    1. Jurisdiction.

       
       

15. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.56(1), Florida Statutes.

    1. Burden of Proof.

       
       

16. The burden of proof in this proceeding was on the Petitioners. See Adam Smith Enterprises v. Department of Environmental Regulation, 553 So.2d 1260, (Fla. 1st DCA 1990); and Agrico Chemical Co. v. Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1979).

    
    

    1. Standing.

       
       

17. Section 120.56(1), Florida Statutes, provides, in pertinent part, the following:

    
    

    1. Any person substantially affected by a rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority.

       
       

18. In order to conclude that a person is a "substantially affected" person, it must be proved:

    
    

    1) that he will suffer injury in fact which is of sufficient immediacy to entitle him to a

    . . . hearing, and 2) that his substantial injury is of a type or nature the proceeding is designed to protect.

    
    

    Florida Society of Ophthalmology v. Board of Optometry, 532 So.2d 1279, 1285 (Fla. 1st DCA 1988), rev. denied, 542 So.2d 1333 (1989). See also Agrico Chemical Company v. Department of Environmental Regulation, 406 So.2d 478 (Fla. 2d DCA 1981); and Professional Firefighters of Florida, Inc. v. Department of Health and Rehabilitative Services, 396 So.2d 1194 (Fla. 1st DCA 1981).

    
    

19. Additionally, in order for an association to be considered a "substantially affected" person, the association must also prove the following:

    
    

    1. . . . a substantial number of its members, although not necessarily a majority,

       are substantially affected by the challenged rule;

       
       

    2. the subject matter of the proposed rule is within the association's general scope of interest and activity; and

       
       

    3. the relief requested is of a type appropriate for a trade association to receive on behalf of its members.

       
       

       Farmworker Rights Organization, Inc. v. Department of Health and Rehabilitative Services, 417 So.2d 753 (Fla. 1st DCA 1982). See also Florida Homebuilders Association v. Department of Labor and Employment Security, 412 So.2d 351 (Fla. 1982).

       
       

20. TBRPC has suggested that Pasco and the City failed to prove standing because they failed to prove that they have applied, or will apply, for the issuance of a DRI. Therefore, TBRPC has suggested that, since the Challenged

    Rule only applies to the review of applications for DRI, Pasco and the City have failed to prove standing. This argument is rejected.

    
    

21. Local governments, such as Pasco and the City, are required to make the initial determination of whether to grant an application for a DRI. In making such a determination, Pasco and the City are required to apply levels of service established in their local comprehensive plans. See Section 163.3202(2)(g), Florida Statutes. Where the levels of service of the Pasco or City comprehensive plans are less stringent than those established in the Challenged Rule, TBRPC may inform Pasco or the City of TBRPC's more stringent level of service requirement. See Section 380.06(12), Florida Statutes. If Pasco or the City ignores the more stringent requirement, TBRPC may appeal the local government's decision to issue the DRI to FLWAC. Section 380.07, Florida Statutes. Consequently, Pasco and the City, as a result of the requirement of the Challenged Rule, must decide whether to comply with the requirements of the Challenged Rule where those requirements are more stringent or face the possibility that the issuance of a DRI will be appealed by TBRPC.

    
    

22. Additionally, if Pasco or the City are ultimately required to adhere to a more stringent level of service contained in the Challenged Rule, additional costs associated with meeting that level of service could be incurred by Pasco and the City.

    
    

23. TBRPC has also suggested that a possible appeal of a decision of a local government such as Pasco or the City not to adhere to a more stringent level of service recommended by TBRPC is too speculative because TBRPC may only "recommend" to FLWAC that the issuance of a DRI be appealed. At page 34 of TBRPC's proposed final order it is stated:

    
    

    . . . . TBRPC's role in the DRI process is to issue a report to the local government detailing the extent of regional impact of the proposed development. This report is not legally binding on local government prior to issuing an order.

    Policy 20.11.1 can only be used to produce the regional report required by 380.06(12), Florida Statutes and to recommend appeal to the Florida Land and Water Adjudicatory Commission (380.07 Florida Statutes). FLWAC ultimately determines whether or not the local government's development order makes adequate provision for the negative impacts of a project, as required by 380.06(15)(e)2 Florida Statutes.

    
    

    The basic premise of TBRPC's argument is incorrect. Section 380.07(2), Florida Statutes, specifically provides that "an appropriate regional planning agency .

    . . may appeal the order to the Florida Land and Water Adjudicatory Commission by filing a notice of appeal with the commission." Therefore, TBRPC does not merely have the authority to "recommend" that an appeal be taken--TBRPC may institute such an appeal. The evidence supports the conclusion that TBRPC will appeal the issuance of a DRI which is approved by Pasco or the City which does not comply with the Challenged Rule.

    
    

24. Based upon the evidence presented in these cases, Pasco and the City have proved that they are "substantially affected" persons.

25. The evidence also supports a finding that BAGT, an association, is "substantially affected" and meets the tests of Florida Home Builders Association. Although BAGT did not prove that any of its members are holders of DRIs, they are still impacted by the requirements of any DRI they are involved with constructing.

    
    

    1. The Petitioners' Challenge.

       
       

26. Section 120.56, Florida Statutes (1991), authorizes a substantially affected person to seek an administrative determination that any existing agency rule is an "invalid exercise of delegated legislative authority" as those terms are defined in Section 120.52(8), Florida Statutes. An "invalid exercise of delegated legislative authority" is defined in Section 120.52(8), Florida Statutes, as follows:

    
    

    1. "Invalid exercise of delegated legislative authority" means action which goes beyond the powers, functions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply:

       
       

       1. The agency has materially failed to follow the applicable rulemaking procedures set forth in s. 120.54;

          
          

       2. The agency has exceed its grant of rulemaking authority, citation to which is required by s. 120.54(7);

          
          

       3. The rule enlarges, modifies, or contravenes

          the specific provisions of law implemented, citation to which is required by s. 120.54(7);

          
          

       4. The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency; or

          
          

       5. The rule is arbitrary or capricious.

    
    

27. In the petitions filed in these cases, it has been alleged that the Challenged Rule is an invalid exercise of delegated legislative authority as defined in Sections 120.52(8)(b) and (c), Florida Statutes.

    
    

    1. The Florida Regional Planning Council Act; Comprehensive Regional Policy Plans.

       
       

28. The Legislature has adopted the Florida Regional Planning Council Act, Sections 186.501-180.513, Florida Statutes. Among other things, the Legislature has expressed the following legislative intent for enacting the Florida Regional Planning Council Act:

    
    

    1. The Legislature finds and declares that:

       1. The problems of growth and development often transcend the boundaries of individual units of local general-purpose government, and often no single unit can formulate plans or implement

          policies for their solution without affecting other units in their geographic area.

       2. There is a need for regional planning agencies to assist local governments to resolve their common problems, engage in areawide comprehensive and functional planning . . . and provide a regional focus in regard to multiple programs undertaken

       on an areawide basis.

       * * *

       (e) There is a need for the establishment at the regional level of clear policy plans that will guide broad-based representative regional planning

       agencies as they undertake regional review functions.

       
       

29. Pursuant to Section 186.504, Florida Statutes, "regional planning councils", such as the TBRPC, are created:

    
    

    1. A regional planning council shall be created in each of the several comprehensive planning districts of the state. Only one agency shall exercise the responsibilities granted herein within the geographic boundaries of any one comprehensive planning district.

       
       

       "Comprehensive planning districts" are defined in Section 186.503(1), Florida Statutes.

       
       

30. Among other things, the Legislature has required that each regional planning council adopt a "comprehensive regional policy plan". Section 186.507(1), Florida Statutes:

    
    

    1. A comprehensive regional policy plan shall contain regional goals and policies, specifically including growth management policies; shall be consistent with, and shall further, the state comprehensive plan; and shall implement and accurately reflect the goals and policies of the state comprehensive plan. Regional plans shall address significant regional resources, infrastructure needs, or other issues of importance within the region. Regional plans shall specify regional issues that may be used

       in reviewing a development of regional impact.

       Such regional issues shall be consistent with any state statutes, rules, or policies that specifically relate to or govern a regional issue or criteria adopted for development-of-regional-impact review.

       All regional issues and criteria shall be included in the comprehensive regional policy plan adopted by rule pursuant to s. 186.508. [Emphasis added].

       
       

31. Regional planning councils, in developing a comprehensive regional policy plan, are required to "seek full cooperation and assistance of local government to identify key regional issues" and to "give consideration to existing state, regional, and local plans". Sections 186.507(4) and (5), Florida Statutes. Local governments are also given an opportunity to comment on proposed regional plans. Section 186.507(6), Florida Statutes.

    1. The Florida Regional Planning Council Act; Developments of Regional Impact.

       
       

32. In 1972 the Legislature enacted the "Florida Environmental Land and Water Management Act", Sections 380.012-380.10, Florida Statutes.

    
    

33. Among other things, the Legislature has required review and approval of certain types of developments in Florida pursuant to Section 380.06, Florida Statutes, designating such developments as "developments of regional impact":

    
    

    1. DEFINITION.--The term "development of regional impact," as used in this section, means any development which, because of its character, magnitude or location, would have a substantial effect upon the health, safety,

       or welfare of citizens of more than one county.

       
       

34. Pursuant to Section 380.06, Florida Statutes, several governmental agencies are involved in the review of DRI applications including the Administration Commission, the Department of Community Affairs, regional planning councils, the FLWAC and local governments.

    
    

35. The Administration Commission, upon recommendation of the Department of Community Affairs (which is referred to as the "state land planning agency" in Chapter 380, Florida Statutes), sets statewide guidelines and standards "to be used in determining whether particular developments shall undergo development-of-regional-impact review." Section 380.06(2), Florida Statutes.

    
    

36. The Department of Community Affairs, among other things, is required to adopt rules governing the review of DRI applications:

    
    

    (a) The state land planning agency shall adopt rules to ensure uniform procedural review of developments of regional impact by the state land planning agency and regional planning agencies under this section. These rules shall be adopted pursuant to chapter 120

    and shall include all forms, application content, and review guidelines necessary to implement development-of-regional-impact reviews. . . .

    
    

    Section 380.06(23)(a), Florida Statutes. Pursuant to this authority, the Department of Community Affairs has adopted Chapter 9J-2, Florida Administrative Code. The Department of Community Affairs may appeal to FLWAC a decision to issue a DRI. Section 380.07, Florida Statutes.

    
    

37. Among other things, the regional planning councils are required to review applications for DRIs in their regions. Following its review, the regional planning council is required to:

    
    

    . . . prepare and submit to the local government a report and recommendations on the regional impact of the proposed development. In preparing its report and recommendations, the regional planning agency shall identify regional issues based upon the following review criteria and

    make recommendations to the local government on these regional issues, specifically considering whether, and the extent to which:

    * * *

    4. The development will efficiently use or unduly burden public transportation facilities.

    * * * Section 380.06(12), Florida Statutes.

38. In carrying out its responsibility to review DRI applications, regional planning councils are required to develop a list of regional issues they intend to use in their review. Section 380.06(23)(b), Florida Statutes. The list of regional issues must be consistent with state laws and rules "where state laws and rules on those issues exist." Id.

    
    

39. Additionally, Section 380.06(23)(c), Florida Statutes, specifically provides that regional planning councils, in their review of DRI applications, are "subject to rules adopted by the state land planning agency." Regional planning councils are, however, given the following authority:

    
    

    . . . ; however, a regional planning agency may adopt additional rules, not inconsistent with rules adopted by the state land planning agency, to promote efficient review of development-of-regional-impact applications.

    Regional planning agency rules shall be adopted pursuant to chapter 120.

    
    

    Section 380.06(23)(c), Florida Statutes.

    
    

40. Whether an application for a DRI should be approved is ultimately determined by the local governments. Section 380.06(15), Florida Statutes.

    
    

41. In making its decision, a local government is required to consider, in the case of DRIs which are not located in areas of critical state concern, whether, and the extent to which:

    
    

    1. The development unreasonably interferes with the achievement of the objectives of an adopted state land development plan applicable to the area;

    2. The development is consistent with the local comprehensive plan and local land development regulations; and [sic]

    3. The development is consistent with the report and recommendations of the regional

       planning agency submitted pursuant to subsection (12).

    4. The development is consistent with the State Comprehensive Plan. . . .

    
    

    Section 380.06(14), Florida Statutes.

    
    

42. A local government's decision on a DRI application may be appealed to FLWAC. Section 380.07, Florida Statutes. The final decision on the DRI application is made by FLWAC after a formal administrative hearing is conducted pursuant to Chapter 120, Florida Statutes.

43. In determining whether a DRI should be granted, local governments, while not bound by any of the comments made by the regional planning council that reviewed the DRI application, are required to consider the comments of the regional planning council made pursuant to Section 380.06(12), Florida Statutes. Additionally, should the local government fail to adequately take into account the comments of the regional planning council, it faces the possibility that the regional planning council will appeal the decision to issue the DRI to FLWAC.

    
    

    1. Local Government Review of DRI Applications; Impact of Local Comprehensive Plans.

       
       

44. The local comprehensive plans and local land development regulations local governments are required to consider in reviewing DRI applications pursuant to Section 380.06(14), Florida Statutes, are required by Part II of Chapter 163, Florida Statutes, the "Local Government Comprehensive Planning and Land Development Act." Pursuant to this act each local government in Florida is required to adopt a comprehensive plan governing development within the jurisdiction of the local government. Section 163.3167, Florida Statutes.

    
    

45. Section 163.3177, Florida Statutes, sets out the specific matters or "elements" which each local government comprehensive plan must address. Among other things, the comprehensive plan must address the following:

    
    

    (3)(a) The comprehensive plan shall contain a capital improvements element designed to consider the need for and the location of public facilities in order to encourage the efficient utilization of such facilities and set forth:

    * * *

    3. Standards to ensure the availability of public facilities and the adequacy of those

    facilities including acceptable levels of service.

    * * *

    (6) . . . .

    (b) A traffic circulation element consisting of the types, locations, and extent of existing

    and proposed major thoroughfares and transportation routes, including bicycle and pedestrian ways.

    
    

    Sections 163.3177(3)(a) and (6)(b), Florida Statutes.

    
    

46. In adopting a comprehensive plan, each local government is required by Section 163.3177(4)(a), Florida Statutes, to coordinate its plan with "the comprehensive plans of adjacent municipalities, the county, adjacent counties, or the region; . . . and with the state comprehensive plan . . . .

    Unfortunately, in some instances, such as this case, many local government comprehensive plans were adopted before comprehensive regional policy plans were completed.

    
    

47. Local governments are also required to adopt land development regulations governing the issuance of land development orders and to issue development orders, including DRIs, consistent with the local government's comprehensive plan. Sections 163.3194 and 163.3202, Florida Statutes.

    
    

48. Finally, Section 162.3177(10)(f), Florida Statutes, and Rule 9J- 5.005(3), Florida Administrative Code, require that local governments establish

    levels of service in local government comprehensive plans for review of development orders.

    
    

    1. Does the Challenged Rule Exceed TBRPC's Grant of Rulemaking Authority?

    
    

49. Statutorily created agencies, such as TBRPC, are without inherent rulemaking authority. Section 120.54(15), Florida Statutes. Any such authority granted to an agency is limited by the statute conferring the authority. See

    U.S. Shoe Corp. v. Department of Professional Regulation, 578 So.2d 376 (Fla. 1st DCA, 1991).

    
    

50. Where an agency is granted rulemaking authority, it is granted wide discretion in exercising that authority. Department of Professional Regulation

    v. Durrani, 455 So.2d 515 (Fla. 1st DCA 1984). An agency's interpretation of statutes which govern the agency's statutory duties and responsibilities is to be given great weight and should not be rejected unless clearly erroneous. Florida Hospital Association, Inc. v. Health Care Cost Containment Board, 593 So.2d 1137 (Fla. 1st DCA 1992).

    
    

51. Where authorization for rulemaking is not clearly conferred or fairly implied and consistent with the agency's general statutory duties, an agency is without authority to adopt a rule. See Department of Professional Regulation v. Florida Society of Professional Land Surveyors, 475 So.2d 939 (Fla. 1st DCA 1985). Any attempt to extend or enlarge an agency's jurisdiction beyond its statutory authority will be declared to be invalid. Board of Trustess of the Internal Improvement Trust Fund v. Board of Professional Land Surveyors, 566 So.2d 1358 (Fla. 1st DCA 1990).

    
    

52. Based solely upon the provisions of Sections 186.507(1) and 380.06(23)(c), Florida Statutes, the decision in these cases would be relatively easy. Through these provision, the Legislature has assigned responsibility to the regional planning councils to review DRI applications. DRIs by their very definition involve developments which impact the region as opposed to only a local area and come within the general area of responsibility assigned to regional planning councils. See Section 186.502, Florida Statutes. Through Section 380.06(23)(c), Florida Statutes, the Legislature has authorized the regional planning councils to adopt criteria for their review of DRI applications.

    
    

53. The only limitation on the authority granted to regional planning councils pursuant to Section 380.06(23)(c), Florida Statutes, is the requirement that such rules not conflict with rules of the Department of Community Affairs adopted to govern the review of DRI applications. Section 380.06(23)(a), Florida Statutes. As discussed, infra, the Challenged Rule is not in conflict with Rule 9J-2.0255, Florida Administrative Code, which provides rules governing the Department of Community Affairs' evaluation of the transportation aspects of all development orders, including DRIs.

    
    

54. In addition to the authority granted to regional planning councils by Section 380.06(23)(c), Florida Statutes, Section 186.507(1), Florida Statutes, specifically requires that regional planning councils adopt by rule, and as a part of the comprehensive regional policy plan each regional planning council is required to adopt, the basis for the regional planning councils' review of DRI applications.

55. Considering only the provisions of Sections 186.507(1) and 380.06(23)(c), Florida Statutes, and giving TBRPC's interpretation of these provisions great weight and the deference due an agency's interpretation, it cannot be said that TBRPC has exceeded its grant of rulemaking authority in adopting the Challenged Rule. The difficulty with this decision is, however, that Sections 186.507(1) and 380.06(23)(c), Florida Statutes, cannot be read in a vacuum. The Legislature has created comprehensive and somewhat complicated provisions intended to govern growth management in the State of Florida from the state government level to the local government level. See, e.g., Chapters 163, 186, 187, and 380, Florida Statutes. When all of these provisions are considered as a whole, the decision in these cases becomes more difficult.

    
    

56. TBRPC has argued that the fact that it has been using the adopted transportation levels of service for approximately twenty years in its review of DRI applications supports its authority to adopt the Challenged Rule. As the agency with responsibility for implementing Section 380.06(23)c), Florida Statutes, and in light of its authority pursuant to Section 186.507(1), Florida Statutes, TBRPC has argued that its long-standing interpretation of these provisions should be afforded great weight and should not be rejected unless clearly erroneous. See Florida Hospital Association, Inc., supra; and Edward J. Seibert v. Bayport Beach and Tennis Club, 573 So.2d 889 (Fla. 2d DCA 1991), rev. denied, 583 So.2d 1034. TBRPC's argument might be correct to the extent it supports a conclusion that regional planning councils have been granted statutory authority to adopt transportation levels of service. See Board of Optometry v. Florida Society of Ophthalmology, 538 So.2d 878 (Fla. 1st DCA 1989). TBRPC's argument, however, overlooks the fact that a great deal has changed legislatively during recent years concerning growth management in Florida. Consequently, little weight has been given to the fact that TBRPC has been utilizing the transportation levels of service of the Challenged Rule prior to its adoption of those standards.

    
    

57. Relying upon the interrelated aspects of the various provisions governing growth management in Florida, the Petitioners have attempted to prove that the Legislature did not intend for regional planning councils to establish transportation levels of service for any purpose. While the Petitioners' arguments raise doubt and may even suggest the need for clarification of the issue, based upon a consideration of the evidence and the pertinent provisions of law at issue in these cases, it is concluded that the Petitioners have failed to prove that the Legislature did not confer on regional planning councils the authority to adopt transportation levels of service which may be used by regional planning councils in their review of DRI applications.

    
    

58. In support the Petitioners' position that the Challenged Rule exceeds the TBRPC's grant of rulemaking authority, the Petitioners have argued that, while regional planning councils have been granted authority to set regional goals and policies in order to advise local governments, they have not been specifically granted authority to establish transportation levels of service. The Petitioners have argued that, absent the granting of such specific authority, or authority fairly implied, TBRPC is without rulemaking authority.

    
    

59. In support of their argument that regional planning councils are without authority to adopt by rule transportation levels of service, the Petitioners have pointed to the Legislature's authorization to local governments pursuant to Chapter 163, Florida Statutes, and to the Florida Department of Transportation pursuant to Chapters 334 and 336, Florida Statutes, to establish transportation levels of service.

60. The Department of Community Affairs has required the adoption of levels of service by local governments as part of their comprehensive plans. Rule 9J-5.005(3), Florida Administrative Code. Rule 9J-5.005(3), Florida Administrative Code, has been specifically adopted by the Legislature in Section 163.3177(10), Florida Statutes (1992 Supp.). Rule 9J-5.005(3), Florida Administrative Code, provides:

    
    

    Each local government shall establish a level of service standard for each public facility located within the boundary for which such local government has authority to issue development orders or development permits.

    
    

    See also Rules 9J-5.0055(1)(a) and 9J-5.015(3)(b), Florida Administrative Code. Section 163.3177(10)(f), Florida Statutes, specifically recognizes that local governments "are charged with setting levels of service for public facilities in their comprehensive plans in accordance with which development orders and permits will be issued . . . ." The Legislature also provided, however, in recognizing that local government's are to establish levels of service, that it did not intend to "supercede the authority of state, regional or local agencies as otherwise provided by law." It is therefore concluded that Section 163.3177(10)(f), Florida Statutes (1992 Supp.), and, consequently, Rule 9J- 5.005(3), Florida Administrative Code, were only intended to provide the general rules governing the issuance of all development orders by local governments.

    The Legislature did not intend to preclude other agencies, including regional planning councils, from also establishing levels of service for other purposes. The fact that the Legislature may allow, and indeed require, additional review for those development orders which have regional impact is not, therefore, inconsistent with the requirement that local governments establish transportation levels of service.

    
    

61. The Legislature has also established authority in the Florida Department of Transportation to establish uniform minimum standards for design, construction and maintenance of state roads. See Sections 334.044(10) and 336.045, Florida Statutes. See also Chapter 14-94, Florida Administrative Code. The Department of Community Affairs requires that local government comprehensive plans "to the maximum extent feasible" adopt transportation levels of service which are compatible with levels of service established by the Department of Transportation. Rule 9J-5.0055(1)(d), Florida Administrative Code.

    
    

62. Again, the provisions governing the Department of Transportation's responsibility do not specifically address or limit the authority and responsibility granted to regional planning councils to review DRI applications any more that those provisions preclude local governments from establishing levels of service which are only required by the Department of Community Affairs to be compatible with the levels of service of the Department of Transportation "to the maximum extent feasible."

    
    

63. There is no question that the Legislature has not expressly stated that regional planning councils are to adopt "levels of service" for transportation. It is also true that the Legislature has required that local governments and the Department of Transportation specifically adopt "levels of service." No case has been cited, nor is the undersigned aware of any such case, however, where the doctrines of statutory construction that the expression of one thing excludes another or that the direction as to how a thing shall be done prohibits it being done in another way have been applied to facts similar

    to these. See PW Ventures, Inc. v. Nichols, 533 So.2d 281 (Fla. 1988); and Alsop v. Pierce, 19 So.2d 799 (Fla. 1944).

    
    

64. The Petitioners have also argued in support of their position that TBRPC has exceeded its rulemaking authority that employees of the Department of Community Affairs believe that uniform transportation levels of service for the region are not necessary to mitigate the regional impacts of DRIs and that having "conflicting" standards for review between the TBRPC and local governments makes for an inefficient DRI review process. These arguments, and the evidence offered by the Petitioners, do not support a conclusion that TBRPC lacks rulemaking authority to adopt the Challenged Rule.

    
    

65. The evidence from employees of the Department of Community Affairs who testified in this proceeding indicated some disagreement between employees of the Department of Community Affairs on the issues involved in these cases. Although there are employees who question the wisdom of the Challenged Rule, the evidence proved that the Department of Community Affairs, as an agency, has not taken the position that regional planning councils do not have the authority to adopt rules such as the Challenged Rule.

    
    

66. The Department of Community Affairs reviewed TBRPC's Challenged Rule prior to its adoption. The Department of Community Affairs did not object to TBRPC's adoption of levels of service. Nor has the Department of Community Affairs adopted a rule pursuant to Section 380.23(a), Florida Statutes, prohibiting regional planning councils from adopting levels of service for DRI reviews.

    
    

67. Finally, it has been argued by the Petitioners that the Legislature did not intend for TBRPC to "usurp the authority of local governments . . . " to adopt and rely upon levels of service established in their local comprehensive plans. The difficulty with this argument is that the Challenged Rule does not take away the authority of local governments to establish levels of service in their comprehensive plans or to rely upon those levels of service in determining whether to approve a DRI or any other development order. What the Challenged Rule does is establish levels of service which TBRPC will use in its review of a DRI application. It also puts developers on notice of the levels of service which TBRPC will rely upon in making comment to the local government concerning a DRI application as it is required to do by Section 380.06(12), Florida Statutes. No where in the Challenged Rule or in any other statute or rule is any local government required to accept any comment by TBRPC about the level of service which TBRPC believes is required. While local governments must consider the comments of a regional planning council, it is up to the local government, and possibly FLWAC, to ultimately determine whether a DRI application should be approved.

    
    

68. Just as it may be true that TBRPC cannot exercise jurisdiction over a local government by forcing the local government to accept the levels of service of the Challenged Rule in the local government's DRI review, the Legislature has not clearly authorized local governments to exercise jurisdiction over TBRPC by forcing TBRPC to accept the local government's levels of service in TBRPC's DRI review.

    
    

69. The weight of the evidence failed to prove that the Challenged Rule exceeds TBRPC's grant of rulemaking authority.

    
    

    I. Does the Challenged Rule Enlarge, Modify or Contravene the Provisions of Law Implemented?

70. The provisions of law implemented by the Challenged Rule are Sections 186.507(1) and 380.06(23)(c), Florida Statutes. The Petitioners have suggested that the Challenged Rule, in adopting transportation levels of service which are to some extent different and more stringent than transportation levels of service provided for in the comprehensive plans of the City and Pasco, enlarges, modifies or contravenes the provisions of Sections 186.507(1) and 380.06(23)(c), Florida Statutes, because the Challenged Rule is in conflict with Rule 9J- 2.0255, Florida Administrative Code.

    
    

71. Section 186.507(1), Florida Statutes, while requiring TBRPC to adopt a comprehensive regional policy plan and to specify regional issues that may be used in its review of DRI applications, specifies that TBRPC's regional issues must be "consistent with any state statutes, rules, or policies that specifically relate to or govern a regional issue or criteria adopted for development-of-regional-impact reviews."

    
    

72. Section 380.06(23)(c), Florida Statutes, while authorizing TBRPC to adopt rules governing its review of DRI applications specifically requires that those rules not be "inconsistent with rules adopted by the state land planning agency "

    
    

73. In considering the Petitioners' arguments on this issue, it must remembered that the issue is whether the requirements of the Challenged Rule are inconsistent with the requirements of Rule 9J-2.0255, Florida Administrative Code, or any other statute or rule. A comparison of a particular level of service contained in the Challenged Rule to a particular level of service contained in a local government comprehensive plan to determine if they are consistent or inconsistent is not the issue. Therefore, the fact that there are some levels of service contained in the Challenged Rule that are more stringent than, or "inconsistent" with, a level of service for the same transportation facility contained in Pasco's or the City's comprehensive plans does not necessarily mean that the Challenged Rule is in conflict with Rule 9J-2.0255, Florida Administrative Code, or any other statute or rule.

    
    

74. In order for it to be concluded that there is an inconsistency between the Challenged Rule and Department of Community Affairs' rules because of the differences in levels of service of the Challenged Rule and local government comprehensive plans, the Department of Community Affairs' rules would have to specifically provide that regional planning councils are required to use levels of service contained in local government comprehensive plans. Rule 9J- 2.0255, Florida Administrative Code, does not contain such a requirement. Nor have the Petitioners cited any such requirement in any other statute or rule.

    
    

75. Rule 9J-2.0255, Florida Administrative Code, establishes the "minimum standards by which the Department [of Community Affairs] will evaluate transportation conditions in development orders for developments of regional impact . . . ." As currently in effect, Rule 9J-2.0255, Florida Administrative Code, specifically provides that the Department of Community Affairs, in evaluating a DRI application, will look to the "policies of the local comprehensive plan and Chapter 380 . . . " if a local comprehensive plan is in effect and to the "transportation conditions pursuant to 9J-5, F.A.C., and Chapter 380 . . . " if no local comprehensive plan is in effect. The Petitioners have argued that the requirement of the Challenged Rule that the TBPRC base its review of a DRI application on the levels of service contained therein is in conflict with these requirements of Rule 9J-2.0255, Florida Administrative Code.

76. When originally adopted in 1987, Rule 9J-2.0255, Florida Administrative Code, recognized that many local governments would not have adopted comprehensive plans and, therefore, the Department of Community Affairs specifically provided standards in Rule 9J-2.0255(3)-(9), Florida Administrative Code, which it would look to until comprehensive plans containing levels of service were adopted by local governments. The Department of Community Affairs specifically provided that its rule was not intended, however, to "limit the ability of the regional planning councils and local governments to impose more stringent mitigative measures than those delineated in this rule." Rule 9J- 2.0255(8), Florida Administrative Code. This provision is no longer in effect. Now it was specifically provided that the Department of Community Affairs will look to the "policies of the local comprehensive plan and Chapter 380 . . . "if a local comprehensive plan is in effect and to the "transportation conditions pursuant to 9J-5, F.A.C., and Chapter 380 . . . " if no local comprehensive plan is in effect.

    
    

77. The Petitioners have suggested that, the fact that the Department of Community Affairs no longer specifically provides in Rule 9J-2.0255, Florida Administrative Code, that the regional planning councils may adopt more stringent transportation requirements for DRI reviews and the fact that it now specifically provides for the use of levels of service contained in local government comprehensive plans, supports its argument that the Challenged Rule is now inconsistent with Rule 9J-2.0255, Florida Administrative Code.

    
    

78. Rule 9J-2.0255, Florida Administrative Code, is by its terms limited to Department of Community Affairs' evaluation of DRI applications and decisions of local governments on DRI applications. The Challenged Rule does not expressly establish any standard which the regional planning councils are required to use in their review of DRI applications. Nor does the Challenged Rule, as explained, supra, require that local governments accept the levels of service provided in the Challenged Rule or follow the levels of service in their review of DRI applications. Therefore, the fact that Rule 9J-2.0255, Florida Administrative Code, provides that, after a local comprehensive plan has been adopted and found to be in compliance, the levels of service contained in the comprehensive plan will be used by the Department of Community Affairs for its purposes does not cause levels of service established by TBRPC for its purposes to be inconsistent with Rule 9J-2.0255, Florida Administrative Code.

    
    

79. The standards established by Rule 9J-2.0255, Florida Administrative Code, are also only designated as "minimum" standards. Nothing in the Challenged Rule requires the use of any standard less that those "minimum" standards even for purposes of TBRPC's review of DRI applications. The Challenged Rule specifically provides that, to the extent that a level of service contained in a local government's comprehensive plan is more stringent than that contained in the Challenged Rule, that level of service will be applied by TBRPC. Therefore, the Challenged Rule insures that the minimum standards are used.

    
    

80. Although concerns over the use of levels of service by regional planning councils which are different or inconsistent with those contained in local government comprehensive plans have been expressed within and without the Department of Community Affairs, Rule 9J-2.0255, Florida Administrative Code, and the Challenged Rule are not inconsistent. This conclusion is supported by the position ultimately taken by the Department of Community Affairs in its review of the Challenged Rule.

81. The weight of the evidence failed to prove that the Challenged Rule enlarges, modifies or contravenes the provisions of law the Challenged Rule was intended to implement.

    
    

    J. Supplemental Authority.

    
    

82. On April 7, 1993, BAGT filed a Notice of Supplemental Authority. The "supplemental authority" consisted of Section 32, of CS/CS/HB 2315 (hereinafter referred to as "Section 32"), which was enrolled on April 4, 1993. Section 32, if signed by the Governor, creates Section 186.507(14), and provides:

    
    

    (14) A regional planning council may not, in its strategic regional policy plan or by any other means, establish binding level-of- service standards for public facilities and services provided or regulated by local

    governments. This limitation shall not be construed to limit the authority of regional planning councils to propose objections, recommendations, or comments on local plans or plan amendments.

    
    

83. At issue in these cases is the question of whether the Challenged Rule is an invalid exercise of delegated authority as of the date of this Final Order. That decision must be based upon the laws of this State effective as of the same date. If Section 32 becomes law it will be effective July 1, 1993. Consequently, Section 32 is not the law of this State as of the date of this Final Order. Consequently, even if Section 32 resolved the question of the power of regional planning councils to adopt levels of service, it would not, as a matter of law, mean that the Challenged Rule is invalid before Section 32 becomes effective. Consequently, Section is not "supplemental authority."

    
    

84. If considered at all, Section 32 may only be considered as additional evidence in this proceeding--evidence of what the Legislature intended in adopting the various provisions of law at issue in this proceeding. During the telephone conference conducted on April 13, 1993, to consider the Notice of Supplemental Authority, BAGT has agreed that it had filed Section 32 as such evidence.

    
    

85. It was also represented that Section 32 was not available to the parties until immediately before it was filed. Therefore, it could not have been raised at the time of the final hearing of these cases.

    
    

86. It is within the discretion of the undersigned to accept or reject additional evidence after a final hearing has been conducted but before a decision has been rendered. In light of the fact that the parties could not have presented Section 32 during the final hearing of this matter, Section 32 is accepted.

    
    

87. The parties were asked during the April 13, 1993, telephone conference whether they desired an opportunity to present additional evidence concerning Section if the undersigned decided to consider it. Only TBRPC expressed such a desire. After considering argument of the parties, it is concluded that reopening this matter is not necessary.

    
    

88. BAGT has suggested that Section 32 supports its position that the Legislature, based upon the law today, never intended for regional planning councils to adopt levels of service. In support of BAGT's argument and its

    argument that Section 32 should be considered at all, BAGT has cited Lowry v. Parole and Probation Commission, 473 So.2d 1248 (Fla. 1985). While Section 32 will be considered by the undersigned, BAGT's argument concerning what Section

    32 means today is rejected.

    
    

89. Unlike the situation in Lowry, Section 32 makes no reference to what the Legislature intended concerning regional planning councils and their authority to adopt levels of service prior to its enactment of Section 32. In Lowry, on the other hand, the Court stated, based upon the legislation enacted in that case, it was "unmistakable that the amendments contained in the pending bill are expressions of prior and continuing legislative intent." [Emphasis added]. Lowry, 473 So.2d at 1250.

    
    

90. Absent a clear expression in Section 32 that the Legislature intended in its enactment of Section 32 to clarify what the law means before Section 32 was enacted, Section 32 adds very little to the determination in these cases concerning the authority of TBRPC to promulgate the Challenged Rule. It is not even clear from the language of Section 32 what the Legislative intent as of July 1, 1993 is, assuming Section 32 becomes law, concerning the authority of regional planning councils to adopt levels of service.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the Petitioners have failed to prove that Policy 20.11.1 of

Goal 20: Transportation, of Rule 29H-9.002, Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority.

Consequently, the Petitions for Administrative Determination of Invalidity of Adopted Rule and the Amended Petition for Administrative Determination of Invalidity of Adopted Rule filed by the Petitioners are DISMISSED.

DONE and ORDERED this 19th day of April, 1993, in Tallahassee, Florida.

LARRY J. SARTIN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1993.

APPENDIX

Case Numbers 92-7423RX, 92-7424RX and 92-7452RX

The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Final Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

Pasco's Proposed Findings of Fact

1. Accepted in 42.

2. Accepted in 42 and 51.

3. Accepted in 51.

4. See 56. The amount of costs is too speculative.

5. Not supported by the weight of the evidence. Too speculative. 6 See 54-55.

7 See 56.

8-9 Accepted in 15.

1. Not relevant.

2. Accepted in 20.

3. Accepted in 24.

4. See 18.

5. The testimony relied upon, found at page 297 of the transcript of the final hearing, does not support this finding of fact. Nor is it otherwise supported by the weight of the evidence. See 64-67.

6. Accepted in 58. See 59.

7. Accepted in 63.

8. Accepted in 59.

9. Accepted in 63.

10. Not supported by the weight of the evidence. See 64-67.

11. Accepted in 17-18.

The City's Proposed Findings of Fact

1. Hereby accepted.

2. See 58.

3. See 37 and 59.

4. See 59. But see 60-61.

5. See 65. But see 64 and 67.

6. Not supported by the weight of the evidence. See 65 and 67.

7. Not relevant. See 61, 64 and 66.

8. Accepted in 67.

9. Not supported by the weight of the evidence. 32 See 52 and 54-56.

1. Not relevant. See 52 and 54-56.

2. Accepted in 44.

3. Accepted in 44 and 51.

4. Accepted in 51 and hereby accepted.

5. Hereby accepted.

6. Hereby generally accepted.

7. Not supported by the weight of the evidence. Too speculative.

8. See 40.

9. Hereby accepted. 42-47 See 51.

BAGT's Proposed Findings of Fact

1. Accepted in 47 and hereby accepted.

2. Accepted in 48-49.

3. Accepted in 48.

4. Accepted in 38.

5. Accepted in 40.

6-15 See 51.

1. Hereby accepted.

2. Accepted in 12-14.

3. Not relevant.

4. Hereby accepted.

5. Accepted in 65.

6. Accepted in 19.

22-23 The weight of the evidence did not prove locally established levels of service will be "ignored." Not relevant. See 64-67.

24 See 51.

25 See 64-67.

1. See 24.

2. Accepted in 25.

3. Hereby accepted.

4. Accepted in 57-58.

30-31 Accepted in 63 and hereby accepted.

1. Accepted in 37.

2. See 63.

3. Accepted in 63.

4. Accepted in 59.

5. Accepted in 59 and 63.

6. Accepted in 59.

38-39 Not supported by the weight of the evidence. See 64-67.

1. Accepted in 1.

2. Accepted in 42.

3. Accepted in 42 and hereby accepted.

4. Accepted in 42.

5. Accepted in 43.

6. Accepted in 47-49.

7. Accepted in 51.

47 See 52 and 54-56.

1. Accepted in 51.

2. Not supported by the weight of the evidence.

3. Accepted in 56.

4. Accepted in 11, 52 and 54-56.

5. Accepted in 9.

53-56 Accepted in 44 and hereby accepted.

1. Accepted in 51.

2. See 51.

59 See 52 and 54-56.

60 Not supported by the weight of the evidence. Too speculative. 61-62 Hereby accepted.

1. Not relevant.

2. See 51.

3. Accepted in 11, 52 and 54-56.

4. Accepted in 2.

5. Accepted in 3.

6. Accepted in 4

7. Accepted in 5.

8. Accepted in 6.

9. Accepted in 7. 72-74 Hereby accepted.

75 Accepted in 8. 76-77 Hereby accepted.

78 Accepted in 11.

TBRPC's Proposed Findings of Fact

17 Not supported by the weight of the evidence. Too limited. 18 See 64-67.

1. Accepted in 59.

2. Accepted in 62 and 64-67. 21 See 30-31.

1. Accepted in 29.

2. Hereby accepted. 24 See 51 and 64-67.

1. Although generally a correct summary of Mr. Chapman's testimony, a consideration of all of the evidence proved that there are differences in the levels of service of the Challenged Rule and local government comprehensive plans which, based upon the statutory requirements for DRI review, cause a sufficient injury to the Petitioners to conclude that they have standing. See

   51. More detailed findings of fact are not necessary because the substance of the levels of service contained in the Challenged Rule has not been challenged.

2. Accepted in 48-49 and 52.

3. Accepted in 5.

4. Not relevant.

5. Hereby accepted.

6. Accepted in 5. The conclusion that the number is "not a significant number of members" is a conclusion of law.

7. Accepted in 52 and 54-55.

8. Hereby accepted.

9. See 54.

10. See 44 and hereby accepted.

11. See 42 and hereby accepted. 36-37 Not relevant.

38-39 Hereby accepted except to the extent that it is alleged that no evidence was presented to support a finding that the Petitioners are substantially affected.

COPIES FURNISHED:

Karla A. Stetter

Chief Assistant County Attorney Pasco County

7530 Little Road

New Port Richey, Florida 34654

Thomas G. Pelham, Esquire Linda L. Goodgame, Esquire Post Office Drawer 810 Tallahassee, Florida 32302

Charlene V. Edwards Assistant City Attorney City of Tampa

Sixth Floor - City Hall

315 East Kennedy Boulevard Tampa, Florida 33602

Linda Hallas, Esquire

9455 Koger Boulevard, Suite 209

St. Petersburg, Florida 33702-2491

David Emerson Bruner, Esquire 950 North Collier Boulevard Suite 207

Marco Island, Florida 33937

Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300

NOTICE OF RIGHT TO JUDICIAL REVIEW

PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 92-007423RX

Orders for Case No: 92-007423RX